Citation: Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278
Court: Court of Criminal Appeal, New South Wales
Date: 30 October 2015
Judge(s): Meagher JA; McCallum J; Button J
Background
The appellant had pleaded guilty in the Land and Environment Court to clearing native vegetation on two properties in north-west New South Wales between November 2011 and January 2012, in contravention of s 12 of the Native Vegetation Act 2003 (NSW). The maximum penalty for such an offence is a fine of $1.1 million. At sentencing, Sheahan J imposed a fine of $140,000 and ordered the appellant to pay the prosecutor's reasonable investigation and legal costs and disbursements.
A number of factual matters remained in dispute at the sentencing hearing, which extended over four days and included oral evidence and cross-examination. Key contested issues included the extent of environmental harm, whether the appellant acted recklessly, whether financial gain motivated the offending, and the appropriate discount for the early guilty plea.
The appellant sought leave to appeal against the sentence under s 5AB of the Criminal Appeal Act 1912 (NSW), pressing seven grounds directed primarily at alleged errors in the sentencing judge's findings of fact, the size of the guilty plea discount, and the costs order.
Legal Issues
- Whether the sentencing judge erred in finding that the level of environmental harm was substantial and aggravating
- Whether the finding of reckless conduct was open on the evidence
- Whether financial motivation was properly treated as an aggravating factor
- Whether the sentencing judge erred in finding the appellant had flagrantly disregarded the law, and in his treatment of good character
- Whether a discount of only 12.5% for the early guilty plea was appropriate, given the contested four-day sentencing hearing
- Whether remediation steps by landowners could be attributed to the appellant as a mitigating factor
- Whether the costs order (including investigation costs) was within the court's power and properly made
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all substantive grounds, intervening only on the costs order.
On the factual grounds, Button J applied the traditional test of whether the impugned findings were "open" to the sentencing judge on the evidence. The Court found that each challenged finding, including the findings of substantial environmental harm, reckless conduct, and financial motivation, was supported by the evidence before Sheahan J. In particular, the finding of recklessness was substantially grounded in the evidence of an environmental scientist employed by the Local Catchment Management Authority, who gave oral evidence at the hearing.
On the guilty plea discount, the Court found no error in allowing only 12.5%. Although the plea was entered at an early stage, its utilitarian value was meaningfully diminished by the extensive factual disputes that required four days of contested evidence on sentence. The sentencing judge's evaluative judgment on this point was held to be open.
On the costs order, however, the prosecutor conceded that the sentencing judge had no power to order the appellant to pay the investigation costs of the prosecutor. Counsel for the prosecutor confirmed that no steps would be taken to enforce that portion of the order, but the Court amended it to remove investigation costs and confine the order to reasonable legal costs and disbursements.
Orders Made
- Leave to appeal granted.
- The costs order is amended to read: the defendant is ordered to pay the reasonable legal costs and disbursements of the prosecutor as agreed or assessed.
- Appeal otherwise dismissed.
Key Takeaways
- A finding of fact by a sentencing judge will withstand appeal where it was "open" on the evidence before the court, even if the sentencing hearing was contested and extended over multiple days.
- Where a guilty plea generates a substantial factual dispute requiring a lengthy contested sentencing hearing, the utilitarian value of that plea, and thus the available discount, may be significantly reduced below the standard range.
- Under the relevant sentencing framework, a court has no power to order an offender to pay the investigation costs of a prosecutor in criminal proceedings; the concession by the prosecutor on this point resulted in the costs order being amended on appeal.
- No error was established in treating recklessness as an aggravating circumstance in a strict liability environmental offence, provided the finding is supported by evidence that the offender contemplated the possibility that the conduct was unlawful and proceeded regardless.
- McCallum J expressly reserved her view on whether the traditional "open finding" test, or the broader approach flagged in Clarke v R [2015] NSWCCA 232, is the correct standard for appellate review of sentencing findings of fact, noting the question may require resolution by a specially constituted bench.
Legislation and Cases Referenced
Legislation
- Native Vegetation Act 2003 (NSW), s 12
- Environmental Planning and Assessment Act 1979 (NSW), s 126
- Criminal Appeal Act 1912 (NSW), s 5AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)(ii)
Cases
- Clarke v R [2015] NSWCCA 232
- AB v R [2014] NSWCCA 339
- Blackwell v R [2011] NSWCCA 93; (2011) 81 NSWLR 119
- De Angelis v R [2015] NSWCCA 197
- R v Coleman (1990) 19 NSWLR 467
- R v Oinonen [1999] NSWCCA 310
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 315